Publication - Research and analysis

Tenant Farming Commissioner functions: review

Published: 1 Apr 2020
Directorate:
Environment and Forestry Directorate
Part of:
Farming and rural
ISBN:
9781839606496

Findings from survey research on the functions of the Tenant Farming Commissioner.

28 page PDF

353.9 kB

28 page PDF

353.9 kB

Contents
Tenant Farming Commissioner functions: review
7. Amendments to the functions

28 page PDF

353.9 kB

7. Amendments to the functions

Respondents were asked whether there should be any amendments made to the functions of the Tenant Farming Commissioner, or whether the functions should remain unchanged. The current officeholder, Dr McIntosh, states in his response that all of the current functions remain relevant and should be retained. As can be seen in Table 11, 70% of respondents said the functions of the Tenant Farming Commissioner should remain unchanged.

Table 11: Should the functions of the Tenant Farming Commissioner be amended or remain unchanged?
Response Number Per cent
Functions should be amended 10 30.3%
Functions should remain unchanged 23 69.7%
33

Largely, respondents felt that the office of the Tenant Farming Commission is still in its infancy and, thus, it would be premature to amend the functions. They argued that a review of the functions should be conducted once sufficient time has passed to assess the effectiveness of the current functions. As one respondent said:

'This is a relatively new role and it would appear to be being effective in improving the landlord/tenant relationship and making it more balanced. It is too early to make significant changes. Everything is working fine and the system should be allowed to settle down without meddling.'

Other respondents explained that there have been many legislative changes affecting the tenant farming sector and that time was now needed for tenants and landlords to become accustomed to the changes before further amendments are made. One respondent explained:

'What is required is for a period of stability following the last Agricultural Holdings act to allow all parties to understand those changes and for the influence of this change is to be worked through. I think that there has been a very good start to this, but further change will create further uncertainty which will not be to the benefit of the sector'.

As can be seen in Table 11, 30% of respondents stated that the functions of the Tenant Farming Commissioner should be amended. Amendments were, largely, discussed in terms of the addition of functions, as opposed to the removal of functions.

7.1 Addition of functions

The current officeholder and all other respondents were asked whether there are any functions that they feel should be added to the Tenant Farming Commissioner. Their suggestions are set out below.

A greater role in dispute resolution

Some respondents suggested that the Tenant Farming Commissioner should have a greater role in dispute resolution. For these respondents, the Tenant Farming Commissioner should inquire into and arbitrate any disputes before they can be escalated to the Land Court. As one respondent said:

'I would recommend where appropriate, alternative dispute resolution functions are added to the Land Commission's remit. How this is performed would require a bit of thought however I would hope that it would provide an additional layer of negotiation before a Land Court application and prove to be a more 'friendlier' face to aide agreements.'

While another said:

'Give them [the Tenant Farming Commissioner] the power to sort out any dispute between landlord and tenant, to lessen burden on land courts and the expense incurred in any court proceedings.'

Indeed, many respondents were critical of the Land Court, deeming it an expensive and daunting prospect for both tenants and landlords. The Tenant Farming Commissioner is considered a more approachable mediator and greater dispute resolution powers would be welcomed.

Statutory powers to fine and/or sanction parties in breach of the codes of practice

Many respondents appear sceptical that the Tenant Farming Commissioner would have sufficient powers to resolve disputes between tenants and landlord. As mentioned previously, respondents believe that the Tenant Farming Commissioner should be given statutory powers to fine and/or sanction a tenant or landlord, where there has been a proven breach of the codes of practice.

The Tenant Farming Commissioner suggests that 'consideration could perhaps be given to providing the TFC with the option of sanctioning, or imposing a financial penalty on, anyone found to have been in breach of a code.'

Greater involvement in legislative change

Some respondents suggested that the Tenant Farming Commissioner should have greater involvement in legislative change, specifically around issues concerning land reform and agricultural tenancy. One respondent said that the Tenant Farming Commissioner should have 'the ability to shape further land reform where required and recommend, where codes are being flouted, that they [the codes of practice] become part of further land reform in agricultural tenancy legislation'. Similarly, another respondent felt that the Tenant Farming Commissioner should have 'a duty to work with fellow Commissioners in promoting and identifying further land and tenancy reform to ensure fairness in a healthy tenanted sector and changes in land use policy.'

Provision of guidance

The Tenant Farming Commissioner notes that 'there are many aspects of landlord and tenant relationships, and the associated agricultural holdings legislation, where a code is not necessary but where guidance, and information on particular topics, is helpful to the sector'. The provision of guidance documents is currently not listed in the functions of the Tenant Farming Commissioner. Regardless, eleven guides, explaining the legislation and providing information and guidance on landlord and tenant relationships, have been published. Dr McIntosh believes that the guides have been beneficial for the tenant farming sector. Clarification should, thus, be sought as to whether the current functions support the Tenant Farming Commissioner in producing guides, information and advice for landlords, tenants and agents.

Extending functions to other business arrangements

The current officeholder suggests, in his response, that consideration should be given to extending the role of the Tenant Farming Commissioner to cover other types of business arrangements affecting agricultural holdings. He notes that tenant farming is 'but one of a number of ways in which those wishing to farm, but have no land, can enter into an arrangement with those with land but who do not want to farm'.

The Land Commission and Tenant Farming Commissioner have actively developed and promoted alternatives to tenant farming, such as joint ventures and business partnerships. He suggests that 'since these arrangements are becoming more common, and will undoubtedly give rise to the same difficulties and disputes inherent in the landlord/tenant model, there is a case for extending the role of the TFC to allow the functions to be exercised in relation to these other types of business relationships.'.

7.2 Removal of functions

Respondents were asked whether there are any functions that they feel should be removed from the Tenant Farming Commissioner. The majority of respondents did not feel that the removal of functions was necessary. For many, the Tenant Farming Commissioner has not been in place for long enough to judge the effectiveness of the current functions. As one respondent explained:

'This is a new appointment and therefore should be left to run for another full year to let it settle in. In a year's time, there will be a better opportunity to see what might improve the situation.'

Other respondents felt favourably about the existing functions and felt that removing them would be harmful to the tenant farming sector. As one respondent stated:

'The use of the TFC's current functions have been immensely beneficial to the tenanted sector and removal of any of these functions would represent a retrograde step.'


Contact

Email: socialresearch@gov.scot